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Otkritie International v Umorov & Ors

After judgment, the claimants in this case sought permission to proceed with committal proceedings against several of the defendants. One of the defendants (a litigant in person) argued that the judge should recuse himself from hearing that application (and generally with regard to any committal proceedings against him). The defendant argued that this was a case of “apparent bias” because of “a complete overlap” between the issues determined in the judgment and the claimants’ intended committal proceedings.

Eder J rejected an argument that there was apparent bias in this case. Here there was an “identity of issue” rather than a complete overlap. His judgment had been reached after a full trial and it has been observed in another case that it is appropriate (indeed, preferable) for a trial judge to hear subsequent contempt proceedings. Furthermore, in the words of Rix LJ, “What then is the difference between the judge who bears in mind his own findings and observations, and another judge who reads what the first judge has written, as he must be entitled to do?”

However, despite that view, Eder J concluded “with extreme reluctance” that he ought to recuse himself, on the basis that the defendant’s argument that he had pre-judged the application was tantamount to an allegation not just of apparent bias, but actual bias too. Although he believed that allegation to be entirely groundless and spurious: “it seems to me that such allegations…are so serious that the appropriate course is that I should recuse myself”. Furthermore, having checked the position with the Commercial Court Listing Office, Eder J was confident that there was unlikely to be unnecessary delay in another Commercial Court judge hearing the application.

COMMENT: Although this decision may well be practical, it is perhaps a little surprising that mere allegations (however groundless) of actual bias (which is very rarely alleged by litigants) should be enough to justify a recusal, especially since there might be a risk that a litigant is making the allegation solely in order to have a further case tried by a judge who will not have formed any (legitimate) personal view about him/her yet.

Compare jurisdictions:Arbitration

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